P. v. McClellan CA2/4

Filed 7/10/26 P. v. McClellan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B340939

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA296249)
v.

KENNETH MCCLELLAN,

Defendant and Appellant.

APPEAL from a postconviction order of the Superior Court
of Los Angeles County, Lisa B. Lench, Judge. Reversed in part
and remanded with directions.
Debbie Yen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Charles S. Lee, Deputy Attorney General,
for Plaintiff and Respondent.
Defendant Kenneth McClellan appeals from an order
following a resentencing hearing pursuant to Penal Code
section 1172.75.1 He contends the resentencing court erred in
declining to strike his prior strike convictions. We discern no
abuse of the court’s discretion.
McClellan further contends the resentencing court erred by
(1) imposing consecutive sentences on his attempted murder and
felon in possession of a firearm counts because the court was
unaware of its discretion to impose concurrent terms, (2) not
recalculating custody credits, and (3) reimposing a restitution
fine under section 1202.4. The People concede the court erred,
and we agree. We therefore reverse and remand with directions
for the court to consider whether to impose concurrent or
consecutive terms, recalculate McClellan’s custody credits, and
vacate the section 1202.4 fine.

FACTUAL AND PROCEDURAL BACKGROUND
A. Conviction2
1. The Prosecution Case
In January 2006, at approximately 7:30 p.m., Byron
Johnson was outside his home on West 67th Street moving a
vehicle so that he could place his trash cans by the curb. Johnson
was shot three times and taken to a hospital. Two of his
brothers, both of whom lived with him, were members of the
Rollin 60’s Crips gang, but Johnson denied being a member.

1 All further statutory references are to the Penal Code.
2 The background facts are taken from McClellan’s direct appeal.
(People v. McClellan (May 20, 2010, B211673) [nonpub. opn.].)

2
Their home, in Rollin 60’s territory, was a known hangout for the
gang.
Between 7:30 and 7:45 p.m., Shawna C. was in her car,
stopped at a red light at an intersection near Johnson’s home,
when she heard gunshots. She saw a person in the driver’s seat
of a white Sebring shooting at a man standing near a parked car
in front of a house. The Sebring made a right turn in front of
Shawna’s car, and when the light turned green, she began to
follow it. She was able to stop alongside the passenger side of the
Sebring at a red light. She looked through its open window and
saw one male inside, whom she later identified as McClellan.
Shawna continued following McClellan and was able to get
a partial license plate number. McClellan entered the Inglewood
Cemetery where Shawna noticed a large gathering of people. She
did not turn into the cemetery. She returned to the house where
the shooting took place.
At the scene of the shooting, Shawna spoke to Officer Paul
Fedynich. She told him what she saw and gave him the partial
license plate number and descriptions of the Sebring and
McClellan. Officers took Shawna in their patrol car to the
Inglewood Cemetery.
When they arrived, Officer Fedynich observed
approximately 100 individuals leaving what appeared to be a
funeral, including some Centinela Park Family Bloods members.
Shawna told Officer Fedynich she saw the Sebring in a parking
lot. She also saw McClellan get into a black SUV. The SUV left
the cemetery, followed by the Sebring. Officers followed and
stopped the vehicles. Officer Fedynich approached a woman who
was driving the Sebring. She said the vehicle belonged to a guy
behind her who asked her at the cemetery to drive it. Officer

3
Fedynich assumed she was speaking about someone in the SUV,
which was behind the Sebring.
Shawna saw three males get out of the SUV. She saw
McClellan in the group and identified him as the shooter.
McClellan was arrested and taken to the police station. He said
he was a member of the Centinela Park Family Bloods with the
moniker of “‘Crip Killer.’”
Officer Jeffrey Vach inspected the Sebring several days
after the shooting. Inside the center console, he found an interim
driver’s license in McClellan’s name. In the vehicle, Officer Vach
found two .380 caliber casings. Three .380 caliber casings were
found at the scene of the shooting. The parties stipulated the
same firearm fired the five casings.

2. The Defense Case
McClellan said that at the time of the shooting, he was at a
wake for his friend at the Inglewood Cemetery. He drove to the
cemetery in a dark blue SUV, arriving at 6:45 p.m. He left the
wake at about 8:30 p.m. McClellan stated he was no longer a
member of the Centinela Park gang and denied telling officers he
was. He said he was an associate.
McClellan said he was last in the Sebring three weeks
before the shooting. He had been in the car on two other
occasions but had no idea how his license came to be inside. He
claimed the officer did not find the license in the car’s console.
He denied asking the woman who was driving the Sebring when
it was stopped by police to drive the car. McClellan said he did
not see the Sebring that night. He denied shooting Johnson.
The parties stipulated that a retired Los Angeles police
officer, who was an expert in police procedures, would have

4
testified that proper investigative procedure was not followed
because officers did not conduct a gunshot residue test on the
interior of the Sebring.

3. McClellan’s Original Sentence
Following a bench trial, McClellan was convicted of
attempted murder (count 1), with the finding that he personally
used and discharged a firearm and caused great bodily injury to
the victim, and being a felon in possession of a firearm (count 2).
(§§ 664/187, subd. (a), 12022.53, subds. (b)–(d), 12022.7, subd. (a),
12022.5, subd. (a), 12021, subd. (a).) The trial court found true
that McClellan committed the crimes with the intent to benefit a
criminal street gang, suffered two prior serious felony
convictions, and served two prior prison terms. (§§ 186.22,
subd. (b)(1)(A), 1170.12, subds. (a)–(d), 667, subds. (b)–(i), 667,
subd. (a), 667.5, subd. (b).)
In October 2008, the trial court sentenced McClellan to a
total term of 87 years to life imprisonment, which included
application of the “Three Strikes” law. (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d).) The court ordered McClellan to pay a
restitution fine of $10,000 under section 1202.4. A different
panel of this court remanded the case for resentencing on count 1
but affirmed the judgment in all other respects. In March 2011,
the trial court imposed the same sentence it had previously
selected for count 1.

B. Section 1172.75 Resentencing
In February 2023, the California Department of
Corrections and Rehabilitation (CDCR) identified McClellan as

5
eligible for resentencing under section 1172.75.3 McClellan filed
a motion for resentencing, and the People opposed the request.
At the resentencing hearing, the court denied McClellan’s
request to strike his prior strike convictions and run his
sentences on counts 1 and 2 concurrently. The court stated, “I
think Mr. McClellan is entitled to some relief. [¶] The problem I
have . . . is that I can’t write down two concurrent because of his
strikes. I’m not inclined to strike his strikes.” The court
resentenced McClellan to a total term of 25 years to life plus
27 years: nine years tripled to 27 years under the Three Strikes
law for count 1, and 25 years to life for count 2. The terms were
to be served consecutively. Additionally, the court ordered that
“[a]ll fines and fees previously imposed remain in effect” and that
CDCR calculate custody credits. McClellan appealed.

3 Section 1172.75, subdivision (a) provides, “Any sentence
enhancement that was imposed prior to January 1, 2020, pursuant to
subdivision (b) of Section 667.5, except for any enhancement imposed
for a prior conviction for a sexually violent offense . . . is legally
invalid.” The statute entitles a defendant to a full resentencing if the
defendant’s underlying judgment includes a now invalid prior prison
term enhancement. (People v. Rhodius (2025) 17 Cal.5th 1050, 1054;
People v. Monroe (2022) 85 Cal.App.5th 393, 402.) To facilitate the
process, the statute directs CDCR to “identify those persons in their
custody currently serving a term for a judgment that includes an
enhancement described in subdivision (a).” (§ 1172.75, subd. (b).)

6
DISCUSSION
A. The Resentencing Court Did Not Abuse Its
Discretion in Declining to Strike McClellan’s Prior
Strike Convictions
McClellan argues the trial court abused its discretion in
declining to strike his prior strike convictions. We are not
persuaded.
Under People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero), “a trial court may strike or vacate an allegation or
finding under the Three Strikes law that a defendant has
previously been convicted of a serious and/or violent felony . . . ‘in
furtherance of justice’ pursuant to [ ] section 1385(a).” (People v.
Williams (1998) 17 Cal.4th 148, 158 (Williams).) A sentencing
court “must consider whether, in light of the nature and
circumstances of [defendant’s] present felonies and prior serious
and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies.” (Id. at p. 161.)
The Three Strikes law “creates a strong presumption that any
sentence that conforms to these sentencing norms is both rational
and proper” (People v. Carmony (2004) 33 Cal.4th 367, 378
(Carmony)), and “‘carefully circumscribes the trial court’s power
to depart from this norm.’” (People v. Bernal (2019) 42
Cal.App.5th 1160, 1170 (Bernal).)
We review a sentencing court’s denial of a Romero motion
for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 374.) A
court abuses its discretion only if the defendant so clearly falls
outside the spirit of the Three Strikes law that no reasonable

7
person could disagree. (Id. at p. 378.) Only extraordinary
circumstances warrant a finding that a defendant falls outside
the spirit of the law. (Ibid.) Accordingly, “the circumstances
where no reasonable people could disagree that the [defendant]
falls outside the spirit of the three strikes scheme must be even
more extraordinary.” (Ibid.)
Given McClellan’s violent criminal history, we discern no
abuse of discretion in the order declining to strike his prior strike
convictions. McClellan received his first strike in 1996 when he
pleaded no contest to attempted aggravated mayhem.4 Probation
records state he punched and repeatedly stabbed the victim, who
was in a wheelchair, after asking if the victim was a Rollin 60’s
member. McClellan was sentenced to seven years imprisonment.
McClellan’s second strike occurred in 2002 when he was
convicted of robbery, for which he was sentenced to four years
imprisonment.5 McClellan was paroled in July 2005, and
six months later, committed the underlying offenses involving
driving to the victim’s home in rival gang territory and shooting
the victim multiple times. McClellan did not reform his ways
after suffering the prior strikes. (Williams, supra, 17 Cal.4th at
p. 163; see also People v. Sullivan (2007) 151 Cal.App.4th 524,
571 [“‘three strikes law punishes not only [the defendant’s]
current offenses, but also his recidivism’”].)

4 At the resentencing hearing, defense counsel noted that
McClellan was 14 years old at the time of the incident but was tried as
an adult.
5 According to the People’s opposition to McClellan’s motion for
resentencing, McClellan and another suspect held restaurant
employees up at gunpoint, tied them up, and took $1,700 in cash before
fleeing.

8
McClellan contends that mitigating factors, including his
troubled childhood, youth at the time of the prior strikes and
underlying offenses, and rehabilitation while incarcerated placed
him outside the spirit of the Three Strikes law. The presence of
mitigating factors does not render the resentencing court’s
decision an abuse of discretion. (Bernal, supra, 42 Cal.App.5th at
p. 1170; cf. Williams, supra, 17 Cal.4th at p. 163 [trial court
abused discretion in granting Romero motion, despite defendant’s
youth at time of prior strikes, because defendant persisted in
criminal activity].) “[J]udicially mandating the predominance” of
these factors would “eviscerate[ ] the trial court’s discretion”
under Romero. (Carmony, supra, 33 Cal.4th at p. 379.)
Furthermore, the People noted, and McClellan did not dispute,
that McClellan had six prison disciplinary issues between 2016
and 2022, three of which were for battery on a prisoner. The
resentencing court could reasonably conclude McClellan’s prison
conduct did not support the extraordinary remedy of striking his
prior strikes.
In short, McClellan does not show the resentencing court
abused its discretion by finding he was within the spirit of the
Three Strikes law.

B. The Resentencing Court Erroneously Believed
Consecutive Sentences were Mandatory
McClellan asserts that we must remand for a new
sentencing hearing because the trial court erroneously believed it
lacked discretion to impose concurrent sentences on counts 1
and 2. The People concede that remand is required, and we
accept the concession.

9
When the Three Strikes law applies, sentences for current
qualifying offenses must be ordered to run consecutively to each
other if the current offenses occur on separate occasions and do
not arise from the same set of operative facts. (People v.
Henderson (2022) 14 Cal.5th 34, 45, citing § 667, subd. (c)(6).)
“Conversely, where a sentencing court determines that two or
more current felony convictions were either ‘committed on the
same occasion’ or ‘aris[e] from the same set of operative
facts’ . . . , consecutive sentencing is not required under the three
strikes law, but is permissible in the trial court’s sound
discretion.” (People v. Lawrence (2000) 24 Cal.4th 219, 233.)
When the record shows the trial court proceeded with
sentencing on the erroneous assumption it lacked discretion,
remand is necessary so that the court may have the opportunity
to exercise its sentencing discretion at a new sentencing hearing.
(People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
“Defendants are entitled to ‘sentencing decisions made in the
exercise of the “informed discretion” of the sentencing court,’ and
a court that is unaware of its discretionary authority cannot
exercise its informed discretion.” (Ibid.)
The attempted murder and felon in possession of a firearm
counts were based on McClellan’s possession and use of the same
firearm. There is no suggestion that McClellan possessed more
than one gun when he committed the offenses. (People v. Garcia
(2008) 167 Cal.App.4th 1550, 1567.) Because the attempted
murder and felon in possession of a firearm counts arose from the
same set of operative facts, the resentencing court had discretion
to impose concurrent sentences. Remand for resentencing is
appropriate as the court was unaware of its discretion, and there
is no indication that had it been aware of its discretion, it would

10
nevertheless have imposed consecutive terms. (People v. Deloza
(1998) 18 Cal.4th 585, 600; People v. Gutierrez (2014) 58 Cal.4th
1354, 1391.) We express no opinion on how the court should
exercise its discretion on remand.

C. The Resentencing Court Must Recalculate
McClellan’s Custody Credits
We agree with the parties that the resentencing court
improperly delegated recalculation of McClellan’s custody credits
to CDCR. When a felony sentence is modified during the term of
imprisonment, the trial court must “recalculate and credit the
actual time defendant had served on his sentence prior to the
modification.” (People v. Buckhalter (2001) 26 Cal.4th 20, 23.)
“‘[W]here a defendant has served any portion of his sentence
under a commitment based upon a judgment which judgment is
subsequently declared invalid or which is modified during the
term of imprisonment, such time shall be credited upon any
subsequent sentence he may receive upon a new commitment for
the same criminal act or acts.’” (Id. at p. 32, italics omitted,
quoting § 2900.1.) On remand, the resentencing court must
recalculate McClellan’s custody credits for actual time served.

D. The Restitution Fine Must Be Vacated
McClellan argues, and the People concede, the restitution
fine imposed under section 1202.4 must be vacated under
section 1465.9. We agree.
Effective January 1, 2025, section 1465.9 was amended to
add subdivision (d), which provides: “Upon the expiration of
10 years after the date of imposition of a restitution fine pursuant
to Section 1202.4, the balance, including any collection fees, shall

11
be unenforceable and uncollectible and any portion of a judgment
imposing those fines shall be vacated.” Because McClellan’s
restitution fine was imposed more than 10 years ago, any balance
is unenforceable and uncollectable by operation of law. The fine
must be vacated.

DISPOSITION
The order denying McClellan’s request to strike his prior
strike convictions is affirmed. However, the matter is reversed
and remanded to the resentencing court to (1) exercise its
discretion on whether the terms for counts 1 and 2 should be
concurrent or consecutive, (2) recalculate McClellan’s custody
credits, and (3) vacate the restitution fine imposed under
section 1202.4. The court shall prepare an amended abstract of
judgment reflecting the updated custody credits and that the
restitution fine has been vacated. The resentencing court shall
then forward a certified copy to CDCR.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MORI, J.
We concur:

ZUKIN, P. J.

TAMZARIAN, J.

12